As you know, the Constitution of the Russian Federation limits the international component of the country's legal system to two "elements": generally recognized principles and norms and international treaties.
However, everything that is outside the scope of the law is the recommendations of the authorities international organizations, acts of international conferences, model acts ("soft" law) - actively "intruded" into the law enforcement sphere. In the mid-1990s, when the development and implementation of the constitutional principle was in its infancy, the appearance in court decisions along with treaties of non-legal international norms raised perplexing questions: allegedly, the courts, primarily the Constitutional Court of the Russian Federation, contrary to the Constitution, “declared” the legal rules of the advisory character.
Indeed, sometimes there are curiosities when the courts “include” recommendatory acts in the MP (and sometimes even call them international legislation): the Manual of Procedures and Criteria for Determining Refugee Status of the Office of the United Nations High Commissioner for Refugees of 1979, the Declaration on Social and Legal principles relating to the protection and well-being of children, especially in the transfer of children for upbringing and adoption at the national and international levels (approved by the Resolution of the UN General Assembly on December 3, 1986), the Charter of Social Rights and Guarantees of Citizens of Independent States (approved by the resolution of the Interparliamentary Assembly of the CIS ), the Universal Declaration of Human Rights of 1948, etc. 1
In general, as the analysis of practice shows, the courts have considered and are considering such norms and acts precisely as recommendations.
Thus, the judge of the Supreme Court of the Russian Federation in the decision on the application of K. to invalidate certain points of the resolutions of the Government of the Russian Federation of August 12, 1999 No. 921 and of March 31, 2001 No. 247 as contradicting federal legislation, as well as the Model Agreement between the UN and the states -members providing personnel and equipment for UN peacekeeping operations, noted that the Model Agreement is only the basis for the development of relevant individual agreements and does not contain the rules of the MP.
The general trend is that recourse to international recommendatory acts has become a daily practice in all types of courts. Court decisions accompanied by references to, say, the Universal Declaration of Human Rights, the Declaration of Principles international law, the Final Act on Security and Cooperation in Europe and other documents of the OSCE (CSCE), many of whose provisions have acquired the features of customary law or are norms in the process of becoming, look more weighty and justified.
Strictly speaking, the courts do not apply them, but use them to clarify the concepts used, formulate and justify their position, confirm or strengthen the legal argument. And the questions sometimes raised in the literature about what their application order is, whether they are self-fulfilling or not, hardly make sense.
Involvement in judicial activities of a huge "layer" of international recommendatory norms is a solid step in the practical development of the constitutional principle of the international component of the Russian legal system.
recommendatory acts. As part of the guiding clarifications to lower courts, the Supreme Court of the Russian Federation also interprets the relevant international recommendations. The Decree of the Plenum of the Court dated February 24, 2005 No. 3 “On judicial practice in cases of protecting the honor and dignity of citizens, as well as the business reputation of citizens and legal entities” draws the attention of the courts to the provisions of the Declaration on the freedom of political discussion in the media mass media, adopted on February 12, 2004 at the 872nd meeting of the Committee of Ministers of the Council of Europe, regarding public political discussion and criticism in the media (para. 9). Later, the Supreme Court of the Russian Federation published a review of the practice of considering this category of cases by courts 1 . He noted that the courts were guided not only by the law, but also by international standards, in particular the Declaration, as well as the Resolution of the Parliamentary Assembly of the Council of Europe 1165 (1998) on the right to privacy, and gave an interpretation of some of its provisions.
The range and list of international recommendatory acts used is very wide. This once again indicates that the courts very often turn to them on a variety of issues and branches of law to argue their position on the cases under consideration.
These instruments include: the Declaration on the Human Rights of Persons Who Are Not Citizens of the Country in which they Live; Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power; Recommendation of the Committee of Ministers of the Council of Europe No. I (85) 11 “On the position of the victim in criminal law and procedure”; Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment; Recommendation of the Committee of Ministers of the Council of Europe No. I 16 (2003) to member states on the enforcement of administrative and judicial decisions in the field of administrative law; Resolution No. 3 of the XXIV Conference of European Ministers of Justice "Common approaches and means to achieve effective enforcement of judgments"; Council of Europe Parliamentary Assembly Recommendation 1687 (2004) Combating terrorism through culture; Parliamentary Assembly of the Council of Europe Recommendation 1704 (2005) “Referendums: Towards good practice in Europe”; UN Global Counter-Terrorism Strategy, Bangalore Principles of Judicial Conduct (Annex to UN ECOSOC Resolution 2006/23 of 27 July 2006); Basic principles of the independence of the judiciary; Council of Europe Parliamentary Assembly Recommendation 818 (1977) on the situation of the mentally ill; Declaration on Social and Legal Principles Concerning the Protection and Welfare of Children, Especially in the Placement and Adoption of Children at the National and International Levels, etc.
To strengthen their arguments, courts sometimes resort to "generally accepted international practice", using recommendatory acts of international organizations in which Russia does not participate. So, back in 1998, the Constitutional Court of the Russian Federation, in the case on the verification of the constitutionality of the provisions of the Fundamentals of the Legislation of the Russian Federation on Notaries, noted that the methods of control of notarial chambers provided for in them over the activities of notaries are consistent with the resolution of the European Parliament of January 18, 1994. In another case, the Court referred on the Code of Conduct for Lawyers in the European Community 1988 1
A special and rare case is the citation of decisions of international bodies as mere information for information, which, however, may well affect the development of practice. In this capacity, the decision of the UN Committee on Human Rights No. 1310/2004 on Russia's violation of the requirements of paragraphs 1 and 7 of Art. 14 of the International Covenant on Civil and Political Rights in court decisions on charges of B.
International model standards. A special kind of rules and norms that the courts resort to to strengthen the argumentation when substantiating a decision in a case are the provisions of draft regulations adopted by the bodies of unions, commonwealths, allied states as samples (models) of legislative acts of participating states (model norms). They reflect the coinciding or similar positions of these states, contain developed formulations, and are a stage in the possible emergence of future legal norms (law in the making). There are reasons to believe that model regulation tends to develop. Not only the model norms themselves are developed and adopted, but also agreements on them (“rules on norms”). Thus, within the framework of the EurAsEC, an Agreement was adopted on the status of the Fundamentals of Legislation of this Community, the procedure for their development, adoption
and implementations 1 . As future legal norms, model norms are also used for argumentation in court cases.
In the above ruling on the case of violation of constitutional rights and freedoms by the provisions of the Law of the Russian Federation "On currency regulation and currency control", the Constitutional Court of the Russian Federation correlated the requirements for goods transported across the border with the Fundamentals of the Customs Legislation of the CIS Member States of 1995.
Later, a judge of the Supreme Court of the Russian Federation resorted to a similar argument when considering M.'s supervisory complaint about the revision of court decisions on his claim to invalidate the decision of the customs authority on the payment of customs duties. Moreover, the judge noted that this regulation is generally accepted in international practice, and referred to the International Convention on the Simplification and Harmonization of Customs Procedures of 1973, the EU Customs Code of 1992. It must be assumed that he made such a reference, pursuing a purely comparative legal goal, since Russia is not a member of them.
Individual and normative decisions of bodies of international organizations. Courts often turn to the decisions of bodies of international law enforcement organizations. The judgments of the ECtHR have a special status and role, and they will be given special attention. Here we also note cases of references to decisions of other bodies in the acts of Russian courts.
Sometimes there are references to decisions of the European Commission and the EU Court of Justice, which in principle have no legal significance for Russia. It is obvious that the only role of such examples is to reflect experience and approaches in resolving such cases, and, accordingly, to strengthen the argument of the court.
In one such case, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation considered cassation appeal public organization Center "Dianetics" against the decision of the Supreme Court of the Republic of Bashkortostan on the liquidation of this organization as carrying out educational and medical activities without licenses in violation of the law and violating human rights and freedoms. In addition to a detailed assessment of the legislative framework, the Collegium, in support of its conclusions, cited the relevant provisions of the ECHR, as well as the decision of the ECHR on a similar issue. And, apparently, to reinforce the conclusions, she noted: “The decision taken by the court to liquidate the Dianetics Center of the Republic of Bashkortostan is consistent with the practice of decision-making in such cases in the European Community”, referring to the decision of the European Commission of December 17, 1968. 1
A distinctive feature of UN Security Council resolutions is that they are addressed not to specific people or organizations, but to member states. Hence, at first glance, they have no place in the decisions of domestic courts. Nevertheless, such resolutions are periodically mentioned in the jurisprudence.
Thus, assessing the constitutionality of the provisions of the legislation related to the burial of persons whose death occurred as a result of the suppression of a terrorist act committed by them, the Constitutional Court of the Russian Federation resorted not only to a literal, formal legal interpretation of the contested provisions, but also to a broader, systemic interpretation from the point of view of goals of counter-terrorism policy in the domestic and global spheres. In this context, the Court observed that “The United Nations Security Council, in Resolution 1624 (2005), adopted on 14 September 2005 at the level of Heads of State and binding, emphasizes the importance of taking appropriate measures at the national and international levels to protect the right to life.”
In the case of checking the constitutionality of Art. 188 "Smuggling" of the Criminal Code of the Russian Federation The court concluded that established order movement of currency across the customs border is consistent with international standards developed with the participation of Russia, in particular with the recommendations of the Financial Action Task Force on Money Laundering (FATF). “The UN Security Council, in Resolution 1617 (2005) of July 29, 2005, urged all UN member states to comply with this and other FATF recommendations” 1 .
In these and other cases, resolutions of the UN Security Council, decisions of other international bodies serve to substantiate the courts' final assessment of the situation and their own decision.
Decisions of the Economic Court of the CIS have a different meaning. Being binding on the parties to a particular dispute, they, in addition, acquire the character of a general rule. In the resolution of June 11, 1999 No. 8 "On the action international treaties of the Russian Federation in relation to issues of civil procedure ”The Plenum of the Supreme Arbitration Court of the Russian Federation drew the attention of the courts, in particular, to the rule for collecting state duty when considering economic disputes between subjects of different states, formulated in the decision of February 7, 1996 No. 10/95 С1 / 3- 96 (paragraph 15 of the judgment).
Decisions of an imperative binding nature have the right to be taken by the bodies of the EurAsEC. Here is the decision of the Commission of the Customs Union dated November 27, 2009 No. 132 "On the unified non-tariff regulation of the customs union of the Republic of Belarus, the Republic of Kazakhstan and the Russian Federation" . The Commission formulated a number of direct specific instructions to the governments of these countries, state executive bodies, and the Secretariat. Another example is the decision of the Interstate Council of the EurAsEC dated July 5, 2010 No. 51 “On the agreement on the procedure for moving individuals cash and (or) monetary instruments through the customs border of the customs union” 1 . The Council decided: to accept the Treaty; to the governments of member states "to ensure that national legislation is brought into line with the Treaty".
In pursuance of such decisions, federal bodies adopt implementing acts. Let us mention, in particular, the order of the Ministry of Industry and Trade of the Russian Federation of June 9, 2010 No. 489 on amending the order of November 18, 2008 No. 335 based on the decision of the Interstate Council of the EurAsEC of November 27, 2009 and the letter of the Federal Customs Service of Russia dated 6 July 2010 No. 01-11/33275 "On Passenger Customs Declaration" based on the decision of the Commission of the Customs Union of June 18, 2010
Judgments of the European Court of Human Rights
A solid array of the international component of the Russian legal system, in addition to its normative part (generally recognized principles and norms and international treaties), is represented by the judgments of the ECtHR. Of course, there is no mention of them in the Constitution of the Russian Federation, since Russia joined the Council of Europe and recognized the jurisdiction of the Court after the adoption of the Constitution. Nevertheless, over the past period, this array has quite tangibly, even powerfully “intruded” into the legal system, mainly into its practical part, thanks primarily to the courts.
In this sense, the courts again had a great influence on the development of the constitutional principle of the international component of the country's legal system.
The federal law on the ratification of the ECHR outlined the specific limits of the recognized jurisdiction of the Court: it is obligatory for Russia on the interpretation and application of the Convention and its Protocols in cases of alleged violation by Russia of the provisions of these treaty acts, when the alleged violation took place after their entry into force against Russia 1 . Nevertheless, after years of “work” of the Russian courts with the decisions of the ECtHR, the Constitutional Court of the Russian Federation, interpreting this provision of the Law, gave a significant assessment of their role in the legal system of Russia: “Thus, like the Convention for the Protection of Human Rights and Fundamental Freedoms, the decisions of the European Court on human rights - insofar as they, based on the generally recognized principles and norms of international law, give an interpretation of the content of the rights and freedoms enshrined in the Convention ... - are integral part Russian legal system...(highlighted by me. - S. M.)".
In fact, the range of judgments of the ECtHR used by the Russian courts turned out to be much wider both in terms of time and subject matter than it is outlined by the Law on Ratification of the Convention. As practice has shown, the courts did not ask themselves whether or not they have an obligation (if formally legally interpreted this law) take into account other judgments of the ECtHR, in addition to those binding on Russia. The list of emerging issues is far from being limited to the recognition and enforcement of his rulings against Russia, and it is hardly possible to administer justice, taking into account some rulings and “turning a blind eye” to others. It is precisely the majority of the judgments of the ECtHR used and cited by the courts that apply to other countries.
The courts perceive the decisions of the ECHR (refer to them) in various aspects: when assessing specific concepts or situations, when interpreting the ECHR, to take into account the legal positions of the ECHR and its case law, as a basis for reviewing judicial acts.
The role of guiding explanations of the highest judicial instances. Documents adopted by the upper echelons of the judiciary provide guidance to lower courts in order to ensure uniform application of the law.
Apparently, after the adoption of the Law, which ratified the Convention and recognized the mandatory jurisdiction of the ECHR, the Supreme Arbitration Court of the Russian Federation was the first to react. In order to ensure the development of arbitration practice in line with the Convention and its application, the ECtHR, the Supreme Arbitration Court of the Russian Federation, sent the mentioned information letter “On the main provisions applied by the European Court of Human Rights in the protection of property rights and the right to justice” to arbitration courts.
In Resolution No. 17 of March 12, 2007 “On the Application of the Arbitration Procedure Code of the Russian Federation in the Review of Judicial Acts that Have Enforced Due to Newly Discovered Circumstances,” the Plenum of the Supreme Arbitration Court of the Russian Federation determined the circle of persons who may apply for review of court decisions in connection with the judgment of the ECtHR.
The central document on the issues under consideration for the courts of general jurisdiction is also the aforementioned resolution of the Plenum of the Supreme Court of the Russian Federation dated October 10, 2003 No. 5. Despite the specific name of the resolution, a number of its paragraphs are devoted to the ECtHR and the implementation of its decisions and directly prescribe: application by the courts
The ECHR must be implemented taking into account the practice of the ECtHR in order to avoid any violation of the Convention (para. 10).
The legal positions and acts of the ECtHR are named among the mandatory ones for consideration by the courts also in the decisions of the Plenum of the Supreme Court of the Russian Federation dated December 19, 2003 No. 23 “On the Judgment”, dated February 24, 2005 No. 3 “On Judicial Practice in Cases of Protection of Honor and Dignity of Citizens, as well as the Business Reputation of Citizens and Legal Entities”, dated February 6, 2007, No. 6 “On Amending and Supplementing Certain Resolutions of the Plenum of the Supreme Court of the Russian Federation on Civil Cases”, in the “Review of Judicial Practice in Considering Cases for the Protection of Honor by Courts and dignity" 1 and others.
The Constitutional Court of the Russian Federation, as an independent independent branch of the judicial system, determines the forms of appeal to the positions and acts of the ECtHR in its specific decisions and rulings. And, as can be judged, it is the most active in this regard among all types of courts. In one case, he emphasized his appointment and outlined the limits of the powers of his own and the ECtHR.
Citizens appealed to the Constitutional Court of the Russian Federation with complaints about the verification of the constitutionality of a number of provisions of the Code of Civil Procedure of the Russian Federation and the Law of the Russian Federation "On Psychiatric Care and Guarantees of the Rights of Citizens in its Provision". Moreover, the complaints were filed after the ECtHR in the case “Shtukaturov v. Russia” (one of the applicants) stated a violation of his rights to freedom and personal integrity, a fair trial, enshrined in the ECHR.
Despite the final judgment of the ECtHR and its compulsory jurisdiction, the Constitutional Court of the Russian Federation accepted the complaints for proceedings, stating that the assessment of the constitutionality of legislative provisions is its exclusive prerogative. “Since such verification cannot be carried out either by other domestic judicial bodies or by any interstate body, including the ECtHR, the Constitutional Court of the Russian Federation recognizes the applicants’ complaints, filed by their representatives, as admissible.” It should be noted that, for its part, the ECHR, in cases on complaints that mention the Constitutional Court of the Russian Federation, until recently did not try to interfere with its powers. An unprecedented example was the judgment of October 7, 2010 in the case “Konstantin Markin v. Russia”, in which the ECHR decided to “evaluate” and criticize the arguments of the Constitutional Court in its decision on the applicant’s complaint, as well as Russian legislation, which, according to the ECHR, is incompatible, with the convention. This has been sharply assessed as being clearly outside the scope of the competence established by the ECHR 1 .
Judgments of the ECtHR as an example of the assessment of specific concepts or situations. When considering cases, courts sometimes evaluate certain concepts and situations from the point of view of law, citing similar assessments given by the ECtHR as an argument.
Thus, in the case of the liquidation of the public organization Dianetics Center, one of the main questions was whether the activities of the Center were educational, in order to then correlate it with the requirements of the law. Considering the Center’s cassation appeal against the decision of the previous court instance, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation concluded: “The understanding of education presented in the court decision corresponds to the legal position of the European Court of Human Rights, according to which education is considered as a continuous learning process. In support of this, the judgment of the Court in the case of Campbell and Co-sans v. United Kingdom (Eur. Court. H.R. Campbell and Co-sans v. United Kingdom, Judgment of 25 February 1982. Series A. No. 48) should be cited.
Use of the judgments of the ECtHR in the interpretation of the Convention by the courts. Courts often consider judgments of the ECtHR as an authoritative interpretation of the norms of the ECHR and use them to substantiate their positions and decisions. Since such an interpretation enriches the content of the norm, it can be assumed that the relevant parts of the decrees have elements of rule-making.
The Constitutional Court of the Russian Federation has repeatedly appealed to the interpretation of the ECHR, paragraph 1 of Art. 6 of the ECHR (the right to a fair trial), which indicates an essential element: the execution of a decision of any court is an integral part of the “court”, the violation of the “right to a court” may take the form of a delay in the execution of the decision (another element of this article is the possibility of the preliminary participation of administrative bodies in exercising a jurisdictional function); Art. 5 and 6 on the liberty and security of persons of unsound mind and their right to a fair trial; Art. 1 of Protocol No. 1 to the Convention on the concept of “own property” 1 . His interpretation of paragraph 1 of Art. 8 ECHR on the right to respect for personal and family life gave and the Supreme Court of the Russian Federation.
Legal positions. Russian courts have worked out the practice of comparing (correlating) the legal positions they develop with the positions of the ECtHR. The latter help the perception and understanding of the meaning of the provisions of the ECHR, its adjustment, the development of judicial practice in line with the norms of the Convention and the activities of the ECtHR, sometimes even the amendment of legislation. In Resolution No. 2-P of February 5, 2007, the Constitutional Court of the Russian Federation, as already mentioned, prescribed that the federal legislator should, “taking into account the legal positions of the European Court of Human Rights ... bring the legal regulation of supervisory proceedings ... into compliance with the international legal standards recognized by the Russian Federation”.
The importance of legal positions is periodically drawn to the attention of the Plenum of the Supreme Court of the Russian Federation: in a general decision of October 10, 2003 No. 5 (p. 12), as well as in decisions on specific categories of cases 1 .
Without taking into account the legal positions of the ECtHR, a literal interpretation of the provisions of the Convention may lead to different results in their application. In this context, we note, in particular, some of his positions used by the courts in specific cases.
The requirements of legal certainty and stability are not absolute and do not prevent the resumption of the proceedings on the basis of newly discovered circumstances; the state cannot use such legal regulation that would lead to inequality between public law entities and private individuals; the right to freedom of speech under Art. 10 of the ECHR must be considered in the light of the right to free elections, they are interrelated; the principle of legal certainty means that neither party can request a review of an effective ruling only for the purpose of holding a rehearing and obtaining a new ruling; the right to form an association under Art. 11 ECHR (although it only mentions trade unions) it is possible for citizens to form entity to act jointly in the sphere of their interests; the right to a fair trial (art. 6) implies that a binding decision cannot be changed by a non-judicial authority; education is seen as a continuous learning process.
The role of the case law of the ECtHR. As already mentioned, the Federal Law on the Ratification of the ECHR and the Recognition of the Compulsory Jurisdiction of the ECtHR actually opened the way for the widespread introduction of the case law of the Court into the Russian legal system. Moreover, in this aspect, the Russian courts rely not only on the binding judgments of the ECtHR adopted in relation to Russia, but also on any others that may relate to the subject of the case under consideration or the relevant article of the Convention.
Referring to the precedents of the ECtHR, judging by the results of the study of cases, has become everyday and habitual in the activities of the courts 1 . Like the interpretation of the provisions of the Convention, legal positions and precedents equally help Russian courts in clarifying the arguments in the case, forming their own sustainable practice on similar or coinciding issues. From a formal legal point of view, the judgments of the ECHR play a subsidizing role: the courts cite them to confirm and reinforce their assessments and conclusions (“this position is confirmed by the practice of the ECHR”, “it also follows from the practice of the European Court”, “such a conclusion corresponds to the practice of the Court”, “ the same approach is taken by the ECtHR”, etc.). In fact, they often "lead" the courts to substantiate and make their own decision on the case under consideration.
The particular importance of taking into account the precedent decisions of the ECtHR is seen in the fact that they sometimes not only apply, but also develop the provisions of the Convention. So, in the case of checking the constitutionality of Part 3 of Art. 292 of the Arbitration Procedure Code of the Russian Federation, the Constitutional Court of the Russian Federation turned to the legal position expressed by it earlier: it is not an unconditional basis for refusing to accept a complaint if the deadline set for its filing is not accepted for good reasons. To confirm the validity of its position, the Court correlated it with the practice of the ECtHR and found that the latter also “does not consider this term to be the maximum permissible (punitive) period for protecting the violated right, although the Convention itself does not contain rules on the restoration of a missed deadline(highlighted by me. - S. L /.) ".
In its ruling dated July 16, 2007 No. 11-P on the case of reviewing the constitutionality of certain provisions of the Federal Law "On Political Parties" in connection with the complaint of the Communist Party, the Court noted that the limits of discretion of the legislator in regulating the creation and activities of political parties are predetermined by constitutional rights and freedoms in particular the right to association, including in political parties. This right is inalienable within the meaning of Art. 11 ECHR, although it speaks only of trade unions, which has been repeatedly confirmed by the case law of the ECtHR.
Sometimes judgments of the ECtHR play a “negative role” when they are used as an “unsuitable” means of argumentation. In the aforementioned decision of December 21, 2005 No. 13-P on the verification of the constitutionality of the Law on the General Principles of Organizing the Authorities of the Subjects of the Federation, the Constitutional Court of the Russian Federation cited the decision of the ECtHR in the case of Gitonas v. Greece” dated July 1, 1997 as an example of the application of Art. 3 of Protocol No. 1 to the ECHR. But both the resolution and the article refer to elections only to legislative bodies, while the complaint of citizens and, accordingly, the subject of the case relate to the election of senior officials of the constituent entities of the Russian Federation. The court, however, used them as an argument in a case on a different subject, actually substantiating, with the help of an inappropriate argument, the compatibility of the changes made to this Law with the Constitution of the Russian Federation.
Introduction into law enforcement practice of generally recognized principles applied by the ECtHR. One of the most important values of the judgments of the ECtHR is that they contain not only the interpretation of the provisions of the Convention, the legal positions and case law of the Court, but also the generally recognized principles on which justice should be based.
It is significant that Russian courts appeal both to positive law and legal positions, and to principles. Thereby general principles Laws and universally recognized principles of international law are actively introduced into the country's legal system, primarily into law enforcement practice, and become a "familiar" normative basis for decision-making along with legislation.
The Supreme Arbitration Court of the Russian Federation in an information letter dated December 20, 1999 "On the main provisions applied by the European Court of Human Rights in the protection of property rights and the right to justice" noted the relationship between the competences of national courts to resolve disputes and the ECtHR to consider complaints of violation of property rights , recommended to take into account in the administration of justice, in particular, the following principles from which the ECtHR proceeds: the balance of private and public interests, access to court, dispute resolution by an independent court and compliance with the statutory procedure, impartiality, fairness of the trial, reasonableness of its time and openness.
The Plenum of the Supreme Court of the Russian Federation in its resolution of October 10, 2003 No. 5 gave a definition of the concept of universally recognized principles of MP. In rulings on specific issues, the Plenum orients the courts to certain groups of principles. Thus, in the resolution dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation Labor Code Russian Federation” he drew the attention of the courts to the obligation when applied to an employee disciplinary action comply with the general principles of legal responsibility of justice, equality, proportionality, legality, guilt, humanism recognized by Russia; in the resolution of June 19, 2006 No. 15 "On issues arising from the courts when considering civil cases related to the application of copyright and related rights legislation" - to the list international principles protection of the rights of authors enshrined in the Berne Convention for the Protection of Literary and works of art. In the Review of Normative Acts and Judicial Practice Concerning Ensuring Human Rights to Liberty and Personal Inviolability, 1 the Supreme Court of the Russian Federation listed documents containing generally recognized principles and norms in this area.
The Constitutional Court of the Russian Federation regularly correlates its legal assessments with the principles enshrined in the decisions of the ECtHR: the independence of the judiciary, the provision of justice for human rights, fair justice, the finality and stability of decisions that have entered into force, legal certainty, etc. 1
Judgments of the ECtHR as a basis for the revision of judicial acts. Of all the above forms of “presence” of ECtHR decisions in the legal system of the Russian Federation, their influence on law enforcement practice, this form, obviously, is most consistent with the content of the Federal Law on Ratification of the ECHR. Recognition of the jurisdiction of the Court as binding on the interpretation and application of the Convention not only implies, in the event of a decision against Russia, the obligation to pay compensation, but may also lead to a change in legislation, and in the judicial sphere, a review of the decisions made.
Constitutionality Part 2 Art. 392 of the Code of Civil Procedure of the Russian Federation it was precisely in this aspect that the citizens challenged in their complaints to the Constitutional Court of the Russian Federation. In its judgment of February 26, 2010 No. 4-P, the Court came to exactly this conclusion: taking into account the proclaimed Art. 15 (part 4) of the Constitution of the Russian Federation of the priority of the rules of an international treaty of the Russian Federation, this provision of the Code of Civil Procedure of the Russian Federation cannot be considered as allowing the court to refuse to review its decision if the ECtHR has established a violation of the provisions of the Convention when considering a specific case.
In its resolution of March 19, 2010 No. 7-P, for the same reasons, the Constitutional Court of the Russian Federation found Part 2 of Art. 397 Code of Civil Procedure of the Russian Federation.
In the Code of Criminal Procedure of the Russian Federation and the Arbitration Procedure Code of the Russian Federation, the judgments of the ECtHR are considered as grounds for reviewing court decisions due to new circumstances (Articles 413 and 311, respectively).
The Code of Civil Procedure of the Russian Federation does not provide for such a basis, however, the revision is quite acceptable by analogy with law - based on the principles of legislation (Article 1) and the constitutional principle under consideration. Otherwise it would be illogical and run counter to the Constitution of the Russian Federation.
Two rulings of the Presidium of the Supreme Court of the Russian Federation can serve as an example of such an impact of ECtHR judgments. When considering criminal cases, he canceled court decisions: in one case, in connection with the decision of the ECtHR of June 9, 2005, in which a violation of Art. 1 Protocol No. 1 to the ECHR 1 ; in the other, in connection with the ruling of 13 July 2006, which found a violation of paragraph "6" of § 3 and § 1 of Art. 6 of the Convention. Moreover, in the second decision, the conclusion of the Presidium was placed in the heading of the decision (obviously, for guidance to the courts when considering subsequent similar situations).
- See: Russian justice. 2003. No. 3. S. 6-8; Universally recognized principles and norms of international law, international treaties in the practice of constitutional justice: materials of the All-Russian meeting / ed. M. A. Mityukova et al. M., 2004. S. 528-531.
- See, for example: Generalization of the judicial practice of considering cases related to the application of legislation on refugees and internally displaced persons// Air Force of the Russian Federation. 2000. No. 5; rulings of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated January 12, 1999 No. 2-G99-3, dated April 28, 2000 No. 50-G00-5; resolution of the Constitutional Court of the Russian Federation of March 15, 2005 No. 3-P; determination of the Constitutional Court of the Russian Federation of April 4, 2006 No. 113-0.
- Russian Air Force. 2009. No. 1.
- Russian Air Force. 2005. No. 4; 2007. No. 12.
- See: resolutions of the Constitutional Court of the Russian Federation of December 8, 2003 No. 18-P; dated May 11, 2005 No. 5-P; dated December 26, 2003 No. 20-P; dated July 14, 2005 No. 8-P; dated March 21, 2007 No. 3-P; dated June 28, 2007 No. 8-P; dated February 28, 2008 No. 3-P; dated March 17, 2009 No. 5-P; dated February 27, 2009 No. 4-P; rulings of the Constitutional Court of the Russian Federation dated June 23, 2000 No. 147-0; dated November 5, 2004 No. 345-0; dated December 1, 2005 No. 462-0; from
Last updated: July 2017
Cooperation with the competent authorities of foreign states, as well as with international bodies and organizations, is one of the priority areas of activity of the Prosecutor General's Office of the Russian Federation. To ensure this important direction, in June 2006, by order of the Prosecutor General of the Russian Federation, instead of the International Legal Department, the Main Department of International Legal Cooperation was created, which included the Department of Extradition, the Department of Legal Assistance and the Department of International Law.
In order to increase the effectiveness of cooperation with the competent authorities of foreign states on cases being handled by the central offices of the investigating authorities, as well as on cases that received great public outcry, in September 2010, as part of the Main Directorate for International Legal Cooperation, a department of international cooperation was created for special important matters(on the rights of management). In March 2011, a department of legal assistance and cross-border cooperation with the states of East Asia (based in Khabarovsk) was formed in the legal assistance department of the Main Department for International Legal Cooperation.
To date, the most important place in the international activities of the General Prosecutor's Office of the Russian Federation, issues of interaction with foreign partners in the field of criminal justice are occupied. These are the issues of extradition and provision of legal assistance in criminal cases, including in the field of return from abroad of property obtained as a result of crimes.
In accordance with international treaties and Russian legislation, the Prosecutor General's Office of the Russian Federation is the competent authority of the Russian Federation for extradition and legal assistance in criminal cases.
In particular, by the Decrees of the President of the Russian Federation (No. 1362 dated October 26, 2004, No. 1799 and 1800 dated December 18, 2008, No. 180 dated February 13, 2012), the Prosecutor General's Office of the Russian Federation is determined on matters of extradition and legal assistance in criminal matters contained, respectively, in the UN Convention against Transnational Organized Crime of November 15, 2000, the UN Convention against Corruption of October 31, 2003, the Council of Europe Criminal Law Convention on Corruption of January 27 1999 and the Organization for Economic Co-operation and Development Convention on Combating Bribery of Foreign Public Officials in International Business Transactions of November 21, 1997.
Currently, the Prosecutor General's Office of the Russian Federation cooperates in the field of criminal proceedings with partners from more than 80 countries of the world. Such interaction is carried out on the basis of international treaties or the principle of reciprocity, enshrined in Articles 453, 457, 460, 462 of the Code of Criminal Procedure of the Russian Federation.
The General Prosecutor's Office of the Russian Federation is the only competent body of the Russian Federation that sends to foreign states extradition requests persons in order to bring them to criminal responsibility or enforce sentences, and also decides on foreign requests for the extradition of persons from the Russian Federation.
Russia has special bilateral and multilateral international treaties regulating issues extradition, with almost 80 states (see the list of these treaties in the section "Basic Documents"). In particular, Russia is a party to such multilateral treaties as the European Convention on Extradition of 1957 with three additional protocols thereto of 1975 and 1978 and 2012, as well as the Convention on Legal Assistance and legal relations on civil, family and criminal cases of 1993 with the Protocol to it of 1997
The Russian Federation has special bilateral and multilateral agreements on legal assistance in criminal cases with more than 80 states (see the list of these treaties in the section "Basic Documents"). Thus, Russia participates in a number of multilateral treaties in this area: the European Convention on Mutual Assistance in Criminal Matters of 1959 and its Additional Protocol of 1978, the European Convention on the Transfer of Criminal Proceedings of 1972, as well as the Convention concluded within the framework of the CIS on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters, 1993, with its Protocol of 1997
Cooperation of the Prosecutor General's Office of Russia with the competent authorities of foreign states in matters of extradition and provision of legal assistance for last years develops quite actively.
The scale of this cooperation is evidenced by the fact that annually the Prosecutor General's Office of the Russian Federation considers more than 10 thousand materials on extradition, legal assistance in criminal cases, search and other issues within the competence of the Prosecutor General's Office of the Russian Federation in the field of criminal proceedings.
The most effective cooperation develops with the competent authorities of Belarus, Kazakhstan, Uzbekistan, Germany, Spain, Serbia, Switzerland.
Every year, the Prosecutor General's Office of the Russian Federation sends about 400 extradition requests to the competent authorities of foreign states, and more than 1,500 similar foreign requests are considered.
The geography of cooperation in the field of extradition is expanding. Increasingly, criminals are trying to escape justice in states with which Russia has no extradition treaties. However, in recent years, with some of these countries (in particular, with Chile, Ghana, Cambodia, Paraguay, the United United Arab Emirates, Thailand) successfully resolved the issues of transferring wanted persons to Russia.
Every year, the Prosecutor General's Office of the Russian Federation considers more than 6,000 requests for legal assistance in criminal cases, both those received from abroad and Russian ones intended for sending to foreign states.
The institute of transfer of criminal proceedings is effectively used. Petitions are sent to the competent authorities of foreign states to prosecute foreign citizens who have committed crimes on the territory of Russia, and also consider petitions from foreign states to prosecute Russian citizens who have committed crimes abroad.
One of the important activities of the General Prosecutor's Office of Russia is cooperation with foreign colleagues in matters of search, arrest, confiscation and return of stolen property from abroad.
Thanks to cooperation with foreign colleagues from Switzerland alone, over the past few years, over 110 million dollars have been returned to Russian companies. United States arrested on behalf of the Russian Prosecutor General's Office.
To date, at the request of the General Prosecutor's Office of Russia, arrested and blocked abroad cash intruders for a total amount of about 250 million euros and real estate in the amount of about 300 million euros.
In May 2011, Chapter 29-1 was introduced into the Code of Administrative Offenses of the Russian Federation, which regulates international legal cooperation in cases of administrative offenses. At the same time, the Prosecutor General's Office of Russia has been identified as one of the competent authorities for the provision of legal assistance in such cases.
In addition, the General Prosecutor's Office of the Russian Federation is the competent authority for concluded within the Commonwealth Independent States(CIS) Convention on the Transfer of Persons with Mental Disorders for Compulsory Treatment (1997).
In recent years, in cooperation with the Ministry of Justice of Russia and the Ministry of Foreign Affairs of Russia, big job on the development of the legal framework for our country's participation in international cooperation in the field of criminal justice, as well as on the implementation of the provisions of international treaties in Russian legislation.
Representatives of the Prosecutor General's Office of the Russian Federation take an active part in the development of draft treaties on extradition and legal assistance in criminal cases, incl. within international organizations.
In particular, one of the Deputy Heads of the Main Directorate for International Legal Cooperation of the General Prosecutor's Office of the Russian Federation has been successfully representing Russian interests in the Committee of Experts of the Council of Europe on the operation of European conventions on cooperation in criminal matters for more than 20 years, actively contributing to the implementation of the Russian initiative to modernize such conventions, in including in matters of speeding up and simplifying extradition procedures.
On an ongoing basis, work is being done to strengthen the legal framework for interdepartmental cooperation. In particular, within the framework of the CIS, the following were signed:
Agreement on Cooperation between the General Prosecutor's Offices (Prosecutor's Offices) of the Member States of the Commonwealth of Independent States in the fight against corruption dated April 25, 2007;
Agreement on Cooperation between the Prosecutor General's Offices of the Member States of the Commonwealth of Independent States in the fight against trafficking in human beings, human organs and tissues dated December 3, 2009
In general, today the Prosecutor General's Office of the Russian Federation has 5 multilateral and 80 bilateral interdepartmental agreements and other agreements on cooperation with partners from 66 foreign countries. Over the past 5 years, 28 such agreements have been signed.
Since 2007, on the basis of agreements with the competent authorities of foreign states, cooperation programs have been developed and signed. Programs are accepted for 1-2 years and provide for the exchange of experience and the establishment of practical interaction on topical issues of mutual interest. During this time, 48 programs have been signed with partners from 28 foreign countries, 40 cooperation programs have been implemented, more than 130 events envisaged by them have been held: consultations, meetings, seminars and round tables.
Currently, 7 programs of interdepartmental cooperation are being implemented: with the prosecution or justice authorities of Abkhazia, Armenia, Bahrain, Hungary, China, Cuba, Finland.
Particularly close relations have developed between the Prosecutor General's Office of Russia and their Belarusian counterparts. On May 15, 2008, the Joint Board of the Prosecutor General's Office of the Russian Federation and the Prosecutor General's Office of the Republic of Belarus was established, which coordinates the activities of the prosecutor's offices of the two countries in the areas of ensuring law and order, protecting human and civil rights and freedoms, and fighting crime.
Representatives of the Prosecutor General's Office of the Russian Federation participate in the activities of various international bodies and organizations, including the relevant structures of the UN, Interpol, the CIS, the Council of Europe, Shanghai Organization cooperation (SCO), as well as the Council of States Baltic Sea.
For example, representatives of the Prosecutor General's Office of the Russian Federation are included in the delegations of the Russian Federation participating in the work of the UN Commission on Narcotic Drugs and the UN Commission on Crime Prevention and Criminal Justice, as well as in international events held under the UN Convention against Corruption. The participation of Russian prosecutors in the activities of the UN Office on Drugs and Crime, the UN Security Council Counter-Terrorism Committee, as well as in conferences of the participants of the UN Convention against Transnational Organized Crime is ensured.
At the meeting of the Prosecutor General of the Russian Federation Chaika Yu.Ya. On June 22, 2017, in Moscow, with the Secretary General of Interpol, Mr. Y. Shtok, the issues of organizing an effective search through the channels of Interpol for persons accused of committing crimes in Russia were discussed.
The interaction of the Prosecutor's Office of the Russian Federation in the areas of ensuring the rule of law, protecting human rights and freedoms, combating crime with partners from the CIS countries is carried out within the framework of the Coordinating Council of Prosecutors General of the CIS Member States (CCGP).
Since the establishment of the KSGP in December 1995, the General Prosecutor of the Russian Federation has been its permanent chairman. The Scientific and Methodological Center of the KSGP operates on the basis of the Academy of the General Prosecutor's Office of the Russian Federation.
The most important issues are brought to the annual meetings of the CCSG. In particular, information is traditionally heard on the state of protecting the rights of citizens, especially those outside their state on the territories of the CIS member states, as well as on the practice of implementing interstate programs and international treaties of the CIS member states in the field of combating crime. There is an exchange of information on the best practices of prosecutorial activity in various fields.
The 27th meeting of the CCSG will be held in St. Petersburg in November 2017. Previously, meetings of the CCSG were held in Russia 8 times, including in Moscow on September 5, 2010 and St. Petersburg on May 15, 2012.
The 15th meeting of the Prosecutors General of the SCO member states will be timed to coincide with the 27th meeting of the CCGP. The decision to create a mechanism for regular meetings of the Prosecutors General of the SCO member states was taken during the meeting of the Prosecutors General of the Organization member states held in Shanghai (PRC) on October 31-November 2, 2002.
Over the 15 years of the existence of this format of cooperation, many decisions have been made that have contributed to the improvement of prosecutorial cooperation within the SCO, primarily anti-terrorist cooperation, the consolidation of the efforts of prosecutors in the fight against organized forms of crime, as well as in the protection of human rights and freedoms. In Russia, meetings of the Prosecutors General of the SCO member states were held twice (Moscow, November 24, 2005 and April 13, 2009).
The issue of the growing role of prosecutors in the fight against terrorism was discussed at the 14th meeting of the Prosecutors General of the SCO member states (People's Republic of China, Sanya, November 30, 2016).
In September 2017, Russia (Kazan) will host the third meeting of the Interstate Council on Combating Corruption (Interstate Council), an agreement on the establishment of which was adopted at a meeting of the Council of CIS Heads of State on September 25, 2013. In accordance with the Decree of the President of the Russian Federation dated 21 February 2014 No. 104 The Prosecutor General of the Russian Federation is a member of the Interstate Council from Russia.
The interaction between the prosecutor's offices of the states that are members of the international association BRICS (Brazil, India, Russia, China, South Africa) is being strengthened. The General Prosecutor's Office of the Russian Federation organized the first meeting of the heads of the prosecutorial services of the BRICS states (Sochi, November 10, 2015), the participants of which agreed to establish prosecutorial cooperation in the association, primarily in order to prevent international terrorism, counteract the global drug threat and corruption, as well as approved the Concept of Cooperation between the Prosecutor's Offices of the BRICS States.
The second meeting of the heads of the prosecution services of the BRICS states took place on December 1, 2016 in Sanya (Hainan Province, China). During this event, issues of cooperation in the field of combating corruption were discussed.
Representatives of the General Prosecutor’s Office of the Russian Federation also participated in the meetings of senior BRICS officials on anti-corruption cooperation (St. Petersburg, November 1, 2015; London, June 9-10, 2016), during which the functioning of the BRICS Anti-Corruption Working Group was discussed. They also took part in the meetings of this group (Beijing, January 26-27, 2016, Berlin, January 22-26, 2017, Brasilia, March 14, 2017) In 2017, the main items on the agenda of the BRICS Anti-Corruption Working Group are issues related to the rapidly growing problem of the return of assets obtained as a result of acts of corruption.
At the third meeting of the heads of the prosecutorial services of the BRICS states, scheduled to be held in Brasilia from August 23 to 24 this year, it is supposed to discuss issues of combating cybercrime and crimes against the environment.
Representatives of the Prosecutor General's Office of the Russian Federation are actively involved in the work of the Consultative Council of European Prosecutors (CCEP), established in 2005, which is an advisory body of the Committee of Ministers of the Council of Europe, the main body of this organization that unites 47 states of the old continent. The CCEP adopted 11 opinions on various aspects of prosecutorial activity, in the development of which Russian prosecutors actively participated.
For example, on the Russian initiative in October 2008, the CCEP conclusion No. 3 “On the role of the prosecutor's office outside the criminal law sphere” was adopted. The basis for the preparation of the conclusion of the CCEP No. 3 was the final document of the Conference of Prosecutors General European countries held on this topic by the General Prosecutor's Office of the Russian Federation jointly with the Council of Europe on July 1-3, 2008 in St. Petersburg. During this conference, foreign colleagues highly appreciated the experience of the Russian prosecutor's office in protecting human rights and freedoms and public interests outside the criminal law sphere.
As a follow-up to CCEP Conclusion No. 3, in September 2012, with the active participation of representatives of the General Prosecutor's Office of the Russian Federation, the recommendation of the Committee of Ministers of the Council of Europe (2012)11 to member states on the role of prosecutors outside the criminal justice system was adopted.
The Academy of the General Prosecutor's Office of the Russian Federation is a member of the Lisbon Network established within the framework of the Council of Europe for the exchange of information on the training of prosecutors and judges.
Delegations of the Prosecutor General's Office of the Russian Federation take an active part in the meetings of the Prosecutors General of the member states of the Council of the Baltic Sea States. In September 2017, the 17th Meeting of Prosecutors General of the Member States of the Council of the Baltic Sea States is planned to be held in Kaliningrad.
The Russian prosecutor's office has a high international prestige, which is evidenced by the fact that its representatives have been elected to the governing and working bodies of a number of authoritative international organizations, incl. Council of Europe, International Association prosecutors and the International Association of Anti-Corruption Agencies.
In 2011, the Deputy Head of the Directorate for Supervision of Enforcement of Anti-Corruption Legislation of the General Prosecutor's Office of the Russian Federation became a member of the Bureau of the Group of States against Corruption (GRECO). Since November 2013, the heads of this department have been elected to the Executive Committee of the International Association of Anti-Corruption Authorities, established in 2006.
In November 2016, at the 85th session of the General Assembly of Interpol, a representative of the Prosecutor General's Office of the Russian Federation, by secret ballot, was elected a member of the Commission for Control over Interpol Files and the Procedure for Interpolation Through Interpol Channels in the Field of International Search for Persons.
Close relations link the Prosecutor General's Office of the Russian Federation with such a non-governmental organization as the International Association of Prosecutors (IAP). The Russian prosecutor's office was one of the initiators of its creation in 1995.
The Association has over 2,200 individual members and 170 organizational members (Prosecution Services, National Associations of Prosecutors and a number of anti-crime bodies). Thus, the MAP represents almost 250,000 prosecutors from 173 jurisdictions.
Yu.Ya. Chaika, Prosecutor General of the Russian Federation is a member of the IAP Senate. Representatives of the General Prosecutor's Office of the Russian Federation also take an active part in the work of the Executive Committee of the Association.
In particular, the Prosecutor General's Office of the Russian Federation was awarded the right to host the 18th IAP Annual Conference, which was held in Moscow in September 2013 and was dedicated to the topic "The Prosecutor and the Rule of Law". It was attended by 115 delegations from over 90 States and 16 international bodies and organizations, including 52 Attorney Generals and Directors of National Public Prosecutions.
In November 2015, the 7th regional conference MAP for the states of Central and Eastern Europe, Central Asia dedicated to the fight against terrorism and violent extremism. It brought together more than 150 representatives of prosecution authorities from 34 states and 9 international bodies and organizations, including the UN, the Council of Europe, the OSCE, the CIS, the SCO and Eurojust.
The strengthening of ties with the competent authorities of foreign states was largely facilitated by efforts aimed at developing interdepartmental cooperation with foreign partners.
In addition to concluding cooperation agreements and programs, the Prosecutor General's Office of the Russian Federation organizes multilateral international events during which the most pressing issues of international prosecutorial cooperation are discussed. In particular, on September 13, 2010 in Moscow, at the initiative of the General Prosecutor's Office of the Russian Federation, the first meeting of the heads of departments of the prosecutor's offices of the CIS member states, whose competence includes extradition and legal assistance in criminal cases, was held.
In April 2011, an international conference was held in Pskov on the theme “Combating drug trafficking, including synthetic drugs and their precursors. The effectiveness of international cooperation in this area”.
Issues of cooperation in the field of combating illicit drug trafficking and combating illegal migration were considered at an international conference organized by the General Prosecutor's Office of the Russian Federation and held in Yekaterinburg on August 28-29, 2012.
On September 23-25, 2014, an international seminar was held in Vladivostok with representatives of the competent authorities of a number of states in East and Southeast Asia on issues of increasing the effectiveness of cooperation in the field of criminal justice.
The Baikal International Conference of Prosecutors, held by the General Prosecutor's Office of the Russian Federation in Irkutsk on August 26-27, 2014, was devoted to the topic of cooperation in combating transnational organized crime.
On December 14, 2016, in Moscow, with the participation of representatives of the competent authorities of foreign states and a number of organizations of the international prosecutorial community, the Prosecutor General's Office of the Russian Federation held the Third Open Information Forum on International Legal Cooperation.
Representatives of the international prosecutorial community participated in the celebrations on the occasion of the 290th anniversary, as well as the 295th anniversary of the Russian prosecutor's office in January 2017. Representatives of the prosecutor's office and justice from 18 states, as well as the heads of the International Association of Prosecutors and the Executive Secretary of the KSGP .
The most important tasks of the Russian prosecutor's office in the near future are to expand and increase the effectiveness of its participation in international legal cooperation, especially in the field of criminal justice, to improve contractual and legislative framework, including on issues of search, arrest, confiscation and return from abroad of property obtained by criminal means.
General Directorate of International
legal cooperation, July 2017
Implementation is the embodiment of the norms of international law in the behavior, activities of states and other entities, the practical implementation of legal prescriptions. There are the following forms of implementation.
Compliance is a form of implementation of norms-prohibitions. Subjects refrain from committing acts prohibited by criminal law. Example: Agreement between the Government of the Russian Federation and the Government of the Republic of Armenia on cooperation in the field of peaceful use atomic energy dated September 25, 2000. In accordance with this agreement, the exchange of information constituting a state secret of both the Russian Federation and the Republic of Armenia is prohibited. with other entities that did not participate in the conclusion of this agreement. Failure to share this information will be proof that this rule is being followed.
Execution is the active activity of subjects in the implementation of norms. In accordance with the UN Convention against Transnational Organized Crime of November 15, 2000, each State Party submits the texts of laws and regulations to the UN Secretary General that ensure the implementation of the provisions of the Convention.
Use - the implementation of the provided opportunities contained in the norms of international law.
At the stage of entry of the norms of international law into the national legal system, a number of problems emerged. On the issue of the implementation of international acts in Russia, it should be said that the practice of executing international treaties and their implementation stumbles upon numerous obstacles and complexities of a legal, organizational, and political nature. It would be incorrect to say that all the obstacles to the implementation of the treaties have been eliminated to date. A number of problems should be highlighted in the implementation of international acts in the legal system of the Russian Federation:
1. The absence of a clearly developed regulatory mechanism for the implementation of generally recognized customary principles and norms of international law, the unsettled status of these principles and norms.
The hierarchical position of generally recognized principles and norms, the form of expression of which is international custom, in contrast to contractual universally recognized principles and norms, the priority of which in relation to the norms of laws in cases of conflict with the latter is provided by Part 4 of Art. 15 is not clearly defined in the national legal system, which significantly complicates law enforcement activities. Kapustin A.N. Constitution and international law / A.N. Kapustin// Bulletin of RUDN.- 2004.-№1.- C 26-28 Their specific list has not been established.
- 2. Incomplete compliance with Art. 3 and part 3 of Art. 5 of the Federal Constitutional Law "On the Judicial System of the Russian Federation" to the requirements of Part 4 of Art. 15 of the Constitution of the Russian Federation. Federal Constitutional Law No. 1-FKZ of December 31, 1996 (as amended on February 5, 2014) "On the Judicial System of the Russian Federation" which was expressed in the form of a federal law, clearly contradicts Part 4 of Art. 15 of the Constitution of the Russian Federation. These agreements should already be taken today in Art. 3 and part 3 of Art. 5 of the law under consideration, a place corresponding to their status established by the Constitution of the Russian Federation.
- 3. Lack of systematization of the norms of international law in relation to branches of law. Speaking about the systematization of the norms of international law in general, it should be noted that this problem is very acute. Various scientists publish a large number of collections of international documents that fill the information sphere, but they are not official. In law enforcement activities, references to such sources are not allowed.
Unsystematized norms of international law significantly complicate the implementation of these prescriptions.
This problem by branches of law can be solved through the development and adoption of official annexes to sectoral codes containing the norms of international law to be applied within a particular industry.
- 4. An undifferentiated approach to determining the position of various types of international treaties of the Russian Federation in the Code of Civil Procedure of the Russian Federation and the APC of the Russian Federation. Article 11 Code of Civil Procedure of the Russian Federation and Art. 13 of the Arbitration Procedure Code of the Russian Federation, speaking of international treaties of the Russian Federation as a whole, they do not divide them into types, while the ratio of the legal force of the norms of international treaties of the Russian Federation and the norms of other normative legal acts applied by the courts depends on the level of the body of the state that concluded the contract, and the form expression, consent to be bound by it. A differentiated approach to determining the position of various types of international treaties of the Russian Federation, taking into account their hierarchical force, should be reflected in these codes, which requires the introduction of appropriate additions to the named articles of the Code of Civil Procedure of the Russian Federation and the Arbitration Procedure Code of the Russian Federation.
- 3. Correlation between international legal acts and the legal system of the Russian Federation
Currently important condition The functioning of Russian legislation is the analysis of the nature, features, sources of international law. According to a widely held point of view, international law has a conciliatory character, which means a special way of creating international legal norms.
Achieving such an agreement is often associated with a compromise, commensurate concessions of states to each other on certain issues, which makes it possible to conclude an international treaty. Consequently, the agreement acts as a way to create norms of international law. Coordination of positions allows the subjects of international law to interact in the international arena and embodies the unity of the states that have concluded an international treaty in solving joint problems and tasks.
The problem of acts of domestic and international law occupies one of the central places in science.
Within the framework of the national system of Russian law, acts of normative content and non-normative content are distinguished, united by vertical and horizontal links. The first group includes normative legal acts - laws and by-laws and interpretative acts of a normative nature - resolutions of the Plenums, acts of interpretation of the Constitution by the Constitutional Court of the Russian Federation, non-normative ones include various law enforcement acts, with the help of which there is a consolidation of power orders aimed at regulating and protecting specific legal relationship.
Normative legal acts of the Russian Federation are classified on the following grounds:
1. Depending on the legal force: laws, subordinate legal acts. In turn, the laws are divided into: the Constitution - the main political and legal act that establishes the constitutional order, the rights and freedoms of man and citizen, determines the form of government and state structure, establishing the federal bodies of the state. The legal properties of the Constitution are: its supremacy, the highest legal force in relation to other legal acts, stability, direct action, is the core of the legal system, the general procedure for the adoption, revision, amendment, special protection by the state.
Federal constitutional laws are adopted on issues expressly designated in the Constitution. Federal constitutional laws, like other normative legal acts, must not contradict the Constitution of the Russian Federation. They are not adopted by a simple majority, but in a special order - for their adoption, at least two-thirds of the votes of the total number members of the State Duma, and approval by the Federation Council requires at least three-quarters of the votes of the total number of members of this chamber.
Federal laws are adopted by a majority of votes from the total number of members of the State Duma and regulate a fairly extensive sphere of public relations.
The laws of the constituent entities of the Russian Federation are adopted by the representative bodies of the constituent entity and cannot contradict federal laws.
By-laws are acts issued by the competent authorities or officials of the state on the basis of and in the execution of laws and containing legal norms. They have less legal force than laws and are based on them. They play a supporting and detailing role.
Decrees and orders of the President - are binding on the entire territory of Russia, must not contradict the Constitution, are prepared within the powers exercised by the President. Orders are taken on current and procedural issues.
Government decrees and directives. The most important acts are issued in the form of resolutions. Acts on operational current issues are issued in the form of orders. All acts of the government are binding on the territory of Russia. They can be adopted on the basis of and in the execution of the laws of the Russian Federation, as well as decrees of the President. In case of conflict with the Constitution, federal constitutional laws, federal laws, decrees of the President, they may be canceled by the President.
Departmental acts are acts adopted on the basis of and in accordance with decrees and orders of the President, resolutions and orders of the Government and regulating relations that are within the competence of these executive structures.
Local by-laws - normative decisions and resolutions of local representative and executive authorities. These acts are independent and independent of state authorities, but are subject to the Constitution and laws of the Russian Federation and the constituent entities of the Federation, and there is also a system of normative legal acts of local governments.
Local acts - various institutions, enterprises, public and economic associations, including commercial organizations, are formed at the state and public level. Each institution, enterprise or organization has its own charter, regulations or other constituent document, internal regulations for employees and administration.
- 2. Depending on the time of action: permanent and temporary.
- 3. By branches of law: criminal law, civil law, family law.
In the theory of international law, an important place is occupied by the question of the place of the norms of international law in the Russian legal system.
In accordance with Part 4 of Art. 15 of the Constitution of Russia, international legal acts are part of its legal system and they are given priority over domestic legislation. If an international treaty establishes rules other than those stipulated by the treaty, the rules of the international treaty shall apply. Constitution of the Russian Federation: adopted by popular vote on December 12, 1993// Russian newspaper 1993.№237 This provision excludes the interpretation of the norm dually - international law and domestic law are independent of each other and national law occupies a central position in relation to international law.
The study of international law is of great importance for the effective legal regulation of relations in the field of organization and social support for the activities of the national armed forces.
In the general theory and history of international law, the existence of two systems, international and national law, is recognized. Any international agreement is fixed within the framework of these two systems as an institution, industry, sub-sector, system, subsystem.
The forms of interaction between the norms of international and domestic law are reflected in the basis of the means and methods for implementing the norms on the territory of a particular state, the creation of a mechanism for state and legal support for the implementation of international legal norms in domestic law.
B. I. Zimnenko notes that the legislator considers international and domestic law as independent legal orders and elements operating in the legal system of Russia. Zimnenko B.L. International law and legal system of the Russian Federation: monograph. -M.: Russian Academy of Justice; Statute, 2006, C 135
For example, in accordance with paragraph 2 of Article 1 of the Criminal Code of the Russian Federation, it is stated that it is based on the Constitution of the Russian Federation, generally recognized principles and norms of international law. Criminal Code of the Russian Federation; the official text was adopted by the State Duma on May 24, 1996 and amended and supplemented on October 1, 2014 / / Collection of Legislation of the Russian Federation. - No. 25. - Art. 1 item 2
In accordance with the Law "On the State Border of the Russian Federation" Federal Law "On the State Border of the Russian Federation": Law of the Russian Federation of April 1, 1993 No. 4730-1 as of June 28, 2014 // Ved. Congress of People's Deputies Ros. Federation and Top. Council of Ros. Federation. 1993. No. 17, Art. 3 Russia cooperates with foreign countries in the field of protection of the State Border on the basis of generally recognized principles and norms of international law, international treaties of the Russian Federation. The legal system of Russia does not include the norms of international law, but only their individual provisions. In order for the norms of international law to be included in the legal system of the Russian Federation, they must regulate the relations that arise between the subjects of the national legal system. The legal system of Russia includes international acts that have received the opportunity to act with the appropriate sanction of the state and complex norms. Complex norms are included in the legal system, but not in the legal system of the state.
The norms of national law, its normative content are formed only by the state itself. The state itself has the right to reformulate the norm, change it or cancel it altogether. In accordance with the system of hierarchy of normative legal acts of the Russian Federation, such actions must take place in the order in which these norms were adopted. A normative legal act may be amended, supplemented or canceled by adopting a new act that has no less legal force.
Any national legal system has its established specific form.
State bodies implementing complex rules of law should take into account that these rules are related to both the national and international legal systems. These norms can objectively function according to the rules and principles specific to this regulatory system, which in turn cannot lead to a violation of the relevant international legal norms. Razumov Yu.A. Place of international law norms in the legal system of the Russian Federation / Yu.A. Razumov // International Law and International Organizations.- 2013.-№2.-С 246-249
The system of forms (sources) of international law and the system of forms (sources) of domestic law - each of them - is a complex, autonomous system in a certain volume and sense. At the same time, the totality of sources of international law is predominantly a horizontal system in its structure, but with certain elements of legal subordination. Ovsepyan Zh.I. The Status of Sources of International Law in the Domestic (National) Legal System (Issues of Integration of International Law in the Russian Federation) / Zh.I. Hovsepyan// North Caucasian legal journal. - 2010.- №4.- From 56-58
Thus, Russian legislation is based on the principles and norms of international law, on the Constitution, on laws on cooperation with foreign states.
Recently, there has been a significant expansion of the forms of participation of international organizations in international rule-making.
In the MP, a new method of creating norms has been actively disseminated - through the adoption of acts of international bodies and organizations. As G. I. Tunkin noted, “along with the contractual and usual processes of the formation of international law norms, there is currently the formation of international legal norms through the adoption by international organizations of legally binding normative resolutions for states.” "Resolutions of an international organization - a new method of creating norms of international law, a new source of international law."
It must be said that the legal force of acts of bodies of international organizations is determined by their constituent documents. According to the statutes of most international organizations, the decisions of their bodies are advisory in nature. However, it is possible to single out two groups of acts containing the norms of international law. Among them:
a) resolutions establishing rules binding on the bodies of this organization (regulations of bodies, resolutions on the formation of the budget of the organization, norms governing the functioning of this organization, etc.). These international norms form part of the internal law of the organization.
As an example, we can mention the EEC Council Regulation No. 3955/92 of December 21, 1992. The Regulation not only approves the Agreement establishing the International Center for Science and Technology between the USA, Japan, the Russian Federation and the European Atomic Energy Community and the European Economic Community acting jointly, but and responsibilities of the EU Council, the European Commission and other EU institutions.
The Rules of the CIS Economic Court, approved by the Decree of the Plenum of the Economic Court on July 10, 1997, determine the procedure for the Court's procedural activities when considering disputes and requests for interpretation within its competence.
b) acts that become legally binding by virtue of the norms of international treaties (regulations and directives of the European Commission, the Council of the EU, ICAO standards, IMO, etc.) and / or domestic legislation.
According to Art. 37 of the Convention on International civil aviation 1944, International Civil Aviation Organization adopts and, as necessary, amends from time to time international standards, recommended practices and procedures relating to: communication systems and air navigation aids, including ground markings; characteristics of airports and landing sites; rules of the air and air traffic control practices; and such other matters relating to the safety, regularity and efficiency of air navigation.
In particular, the Order of the Russian Aviation and Space Agency dated August 15, 2003 No. 165 "On Approval of the Federal Aviation Regulations" Organization of the Work of Medical Personnel of Aviation Organizations of Experimental Aviation" states that "when sent to work in foreign countries experimental aviation aircraft must be equipped with medical supplies in accordance with ICAO recommendations.
According to Art. 15 of the Convention on the International Maritime Organization, the IMO Assembly makes recommendations to the Members of the Organization on the adoption of rules and guidelines relating to maritime safety and the prevention and control of marine pollution from ships, as well as other matters relating to the impact of shipping on marine environment imposed on the Organization by or in accordance with international instruments, or amendments to such rules and guidelines which have been transmitted to it;
Resolution A.741(18) of the International Maritime Organization approved the International Code for the Management safe operation of Ships and Pollution Prevention 1993, which is mandatory both for IMO member states (including Russia) and for ship owners, managers and charterers.
The Decree of the Government of the Russian Federation, which approved the Regulations on the Federal System for the Protection of Maritime Navigation from Illegal Acts against the Safety of Navigation, dated April 11, 2000, provides that "information about each illegal act against the safety of navigation is submitted by the Ministry of Transport of the Russian Federation to the International Maritime Organization (IMO) in accordance with the procedures established by that organization."
According to Art. 22 of the WHO Constitution, rules adopted by the Health Assembly of WHO become binding on all Members after duly notification of their adoption by the Health Assembly, except for those Members of the Organization who notify Director General within the period specified in the notification about their rejection or reservations regarding them.
The norms confirming the international legal nature of the acts of some bodies of international organizations are also enshrined in foreign legislation. Yes, Art. 10 of the Portuguese Constitution establishes: "the rules emanating from the competent bodies of the international organizations to which Portugal is a member, operate directly in domestic law, insofar as this is established in the relevant constituent treaties." Provisions for this are contained in Art. 23 of the Austrian Constitution, art. 29 of the Constitution of Ireland, chapter 10 of the Constitution of Sweden and other documents.
In addition to automatic implementation in the Russian Federation, the “one-time” method of acts of an international organization is also used.
For example, in 1995, the Decree of the Government of the Russian Federation “On Measures for the Implementation of the Documents of the Organization for Security and Cooperation in Europe” “Vienna Document 1994 Negotiations on Confidence and Security Building Measures”, “Global Exchange of Military Information”, “Code of Conduct concerning politico-military aspects of security” and “Decision on the principles governing non-proliferation”.
The decision of the State Customs Committee of the Russian Federation of December 7, 2000 No. GKPI 99-881 indicates that the customs authorities are bound by the “Unified Methodology of Customs Statistics of Foreign Trade of the States Members of the Commonwealth of Independent States” (approved by the decision of the Council of Heads of Government of the CIS on December 9, 1994).
According to the Order of the Ministry of Transport of the Russian Federation dated November 1, 2002 No. 138, the minimum composition of the crews of self-propelled transport vessels is approved in accordance with IMO resolution - A. 890 (21).
Thus, in the process of creating normative acts of international organizations, two stages in the creation of international legal norms can be distinguished: the establishment of a rule of conduct and the giving of legal force to an agreed rule of an international legal norm.
The status of acts of international intergovernmental organizations is determined by their charters. Within their competence, the bodies of these organizations adopt, as a rule, acts-recommendations or acts of a law enforcement nature. So, according to Art. 10, 11, 13 of the UN Charter, the General Assembly is authorized to "make recommendations", and according to Art. 25 members UN are subject to the decisions of the Security Council, but these decisions themselves are connected with its law enforcement activities.
By itself, an international organization has no right to turn into an international "legislator". At the same time, the member states of the organization may use the organization for norm-setting activities. At the sessions of the UN General Assembly, resolutions are adopted that fix the approval on behalf of the Organization of international treaties developed within its framework. This was the case with the Non-Proliferation Treaty. nuclear weapons(1968), Convention on International Liability for Damage Caused by Space Objects (1971), International Covenants on Human Rights (1966), international convention on combating the taking of hostages (1979) and other acts. In these cases, the text of the treaty is published in UN documents as an annex to the General Assembly resolution. But it is the treaty (after it has been signed by the states and entered into force), and not the resolution, that acquires the significance of a source of international law. A similar method is used in other international organizations of a universal nature. A few examples: within the framework of the International Atomic Energy Agency (IAEA) the texts of the Convention on Early Notification of a Nuclear Accident and the Convention on Assistance in the Case of a Nuclear Accident or Radiation Emergency (1986) were adopted; within the framework of the ILO, the text of the Convention on Tribal and indigenous peoples in independent countries (1989), within the United Nations Educational, Scientific and Cultural Organization - Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970) . At the same time, those acts of international organizations that
§ 5. Acts of international organizations
the member states themselves are given a normative character. Such resolutions are adopted by the main (supreme) bodies of organizations in accordance with their functions in cases where the effective implementation of these functions is impossible without the creation of new forms of international law and, consequently, giving the resolutions the status of sources of international law.
It is possible to consider the norms of the Resolution of the UN General Assembly 1514 (XV) of December 14, 1960 “Declaration on the Granting of Independence to Colonial Countries and Peoples” as generally recognized binding legal force. This act was not limited to confirming or interpreting the international legal norms in force at that time, but, in accordance with the purposes and principles of the UN Charter, established new imperative norms regarding the complete prohibition of colonialism and the obligation to immediately grant independence to the peoples of the colonies. This meant new, in comparison with Ch. XI-XIII of the UN Charter, resolving issues affecting the status of non-self-governing territories and international system guardianship. It is noteworthy that in subsequent UN documents and in the acts of our state, references to the provisions of the Declaration are equivalent in legal terms to references to international treaties.
The assessment of the UN General Assembly Resolution 2625 (XXV) of October 24, 1970 "Declaration on the principles of international law concerning friendly relations and cooperation between states in accordance with the Charter of the United Nations" is considered disputable in science. The judgment that the role of the Declaration is reduced to the interpretation of the principles already enshrined in the UN Charter raises an objection, since the Declaration specifies the principles of the Charter, formulates the rights and obligations of states in accordance with each principle. Such concretization is nothing but rule-making. Accordingly, the act of codifying and concretizing the basic principles is essentially a normative act, i.e., a source of international law.
The normative role of the UN General Assembly in adopting amendments to the UN Charter and the Statute of the International Court of Justice is peculiar. According to Art. 108 of the Charter and art. 69 Statute Amendments are adopted by the General Assembly and ratified by Member States UN. In practice, active
Chapter 5. Sources of international law
sti UN such resolutions relating to Art. 23, 27, 61, 109 and having a normative character, were adopted three times - in 1963, 1965 and 1971.
Recently, the UN Security Council has also become involved in rule-making activities, whose decisions have so far been limited to law enforcement. The significance of the source of international law is approved by its resolution 827 of May 25, 1993, the Charter (Statute) of the International Tribunal for the purpose of prosecuting persons responsible for serious violations of international humanitarian law in the territory of the former Yugoslavia.
Regarding the activities of some other international organizations, we can state the adoption by them of administrative and regulatory acts such as standards of the International Civil Aviation Organization (ICAO), WHO sanitary rules, IAEA rules for the safe handling of radioactive materials. The possibility of adopting rules within the framework of the International Seabed Authority is provided for in the UN Convention on the Law of the Sea (Articles 160, 162, etc.). With a positive attitude of the states, such rules can be perceived as normative provisions.
